H-4385

AN ACT Relating to water resources; amending RCW 43.21A.064, 90.03.350, and 90.54.800; amending section 2, chapter 159, Laws of 1989 (uncodified); reenacting and amending RCW 86.16.035; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) The legislature acknowledges that the federal government has preempted state regulation of hydroelectric projects subject to the federal power act.

(2) The legislature finds that:

(a) Applicants for licenses under the federal power act must demonstrate compliance with all applicable federal and state safety and environmental laws.

(b) The federal energy regulatory commission conducts thorough inspections of federally licensed projects that assure that such projects remain in compliance with applicable federal and state laws.

(c) State efforts to regulate and inspect federally licensed projects would merely duplicate federal regulation and inspection and would contribute no additional protection for the citizens of the state in terms of safety or the environment.

(d) State regulation and inspection of federally licensed projects would create unnecessary bureaucracy, would add to the cost of energy that must be paid by the citizens of the state, and would be inconsistent with state policy to reduce the burden of regulation on economic development.

(3) The legislature declares it to be the policy of the state of Washington that state agencies shall refrain from asserting any form of regulatory jurisdiction over federally owned or federally licensed hydro projects.

Sec. 2. RCW 43.21A.064 and 1977 c 75 s 46 are each amended to read as follows:

The director of the department of ecology shall have the following powers and duties:

(1) The supervision of public waters within the state and their appropriation, diversion, and use, and of the various officers connected therewith;

(2) Insofar as may be necessary to assure safety to life or property, he or she shall inspect the construction of all dams, canals, ditches, irrigation systems, hydraulic power plants, and all other works, systems, and plants pertaining to the use of water, and he may require such necessary changes in the construction or maintenance of said works, to be made from time to time, as will reasonably secure safety to life and property. Nothing in this subsection shall apply to any dam, hydraulic power plant, reservoir, project, or other work, system, or plant owned by the United States or licensed under the federal power act;

(3) ((He)) The director shall regulate and control the diversion of water in accordance with the rights thereto;

(4) ((He)) The director shall determine the discharge of streams and springs and other sources of water supply, and the capacities of lakes and of reservoirs whose waters are being or may be utilized for beneficial purposes;

(5) ((He)) The director shall keep such records as may be necessary for the recording of the financial transactions and statistical data thereof, and shall procure all necessary documents, forms, and blanks. ((He)) The director shall keep a seal of the office, and all certificates by him or her covering any of his or her acts or the acts of his or her office, or the records and files of his or her office, under such seal, shall be taken as evidence thereof in all courts;

(6) ((He)) The director shall render when required by the governor, a full written report of the work of his or her office with such recommendations for legislation as he or she may deem advisable for the better control and development of the water resources of the state;

(7) The director and duly authorized deputies may administer oaths;

(8) ((He)) The director shall establish and ((~~promulgate~~)) adopt rules governing the administration of chapter 90.03 RCW;

(9) ((He)) The director shall perform such other duties as may be prescribed by law.

Sec. 3. RCW 86.16.035 and 1987 c 523 s 9 and 1987 c 109 s 53 are each reenacted and amended to read as follows:

The department of ecology shall have supervision and control over all dams and obstructions in streams, and may make reasonable regulations with respect thereto concerning the flow of water which he deems necessary for the protection to life and property below such works from flood waters. Nothing in this section shall apply to any dam, obstruction, reservoir, project, or other work, system, or plant owned by the United States or licensed under the federal power act.

Sec. 4. RCW 90.03.350 and 1987 c 109 s 91 are each amended to read as follows:

Any person, corporation or association intending to construct or modify any dam or controlling works for the storage of ten acre feet or more of water, shall before beginning said construction or modification, submit plans and specifications of the same to the department for examination and approval as to its safety. Such plans and specifications shall be submitted in duplicate, one copy of which shall be retained as a public record, by the department, and the other returned with its approval or rejection endorsed thereon. No such dam or controlling works shall be constructed or modified until the same or any modification thereof shall have been approved as to its safety by the department. Any such dam or controlling works constructed or modified in any manner other than in accordance with plans and specifications approved by the department or which shall not be maintained in accordance with the order of the department shall be presumed to be a public nuisance and may be abated in the manner provided by law, and it shall be the duty of the attorney general or prosecuting attorney of the county wherein such dam or controlling works, or the major portion thereof, is situated to institute abatement proceedings against the owner or owners of such dam or controlling works, whenever he or she is requested to do so by the department. This section shall have no application to any dam, controlling works, reservoir, project, or other work, system, or plant owned by the United States or licensed under the federal power act.

Sec. 5. RCW 90.54.800 and 1989 c 159 s 3 are each amended to read as follows:

Future development of hydropower and protection of river-related resources shall be guided by policies and programs which:

(1) Create opportunities for balanced development of cost-effective and environmentally sound hydropower projects by a range of development interests;

(2) Protect significant values associated with the state's rivers, including fish and wildlife populations and habitats, water quality and quantity, unique physical and botanical features, archeological sites, and scenic and recreational resources;

(3) Protect the interests of the citizens of the state regarding river-related economic development, municipal water supply, supply of electric energy, flood control, recreational opportunity, and environmental integrity;

(4) Fully utilize the state's authority in the federal hydropower licensing process;

(5) Prevent duplication of regulatory effort by abstaining from every attempt to regulate or otherwise assert administrative jurisdiction over dams, hydropower projects, reservoirs, appurtenant structures, and other works, systems, and plants that are owned by the United States or are licensed under the federal power act.

Sec. 6. 1989 c 159 s 2 (uncodified) is amended to read as follows:

(1) The Washington state energy office shall contract with an independent facilitator to reconvene and coordinate the task force assembled to implement section 301, chapter 7, Laws of 1987 1st ex. sess. The task force shall prepare by March 31, 1991, a state comprehensive hydropower plan to serve the broad public interest regarding development of cost-effective electricity and conservation of river-related environmental values. Task force meetings shall be open to the public. The facilitator shall assist the task force in appropriate efforts to inform the general public regarding project concepts and progress. Task force members shall make appropriate efforts to inform the interest groups they represent.

(2) By December 15, 1989, the task force shall engage in a midpoint review whereby participants can jointly appraise the progress of the project. If, in the opinion of the participants, a consensus to continue as a task force cannot be achieved, the executive agencies shall use their existing statutory authority to develop a plan, with the assistance of all affected parties and participating agencies, building upon the work that has been done by the task force.

(3) If the task force continues beyond December 15, 1989, it shall by July 1, ((~~1990~~)) 1992, recommend to the legislature ((~~a lead agency for implementation and management of the~~)) proposals for a state comprehensive hydropower plan.